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Bohra Sri Ram Vs. Jwala Shanker Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All775
AppellantBohra Sri Ram
RespondentJwala Shanker Sahai and ors.
Excerpt:
- - 2. we are of opinion that the lower appellate court has erred in this conclusion, section 1, sub-clause (3) of the act clearly provides that it does not apply to any area included within the limits of a municipality, cantonment, notified area, or town area. section 1, sub-clause (3), clearly makes the act inapplicable to a municipality......not apply to any area included within the limits of a municipality, cantonment, notified area, or town area. then section 3 provides that no right of pre-emption shall be enforced in respect of a transfer made after the commencement of this act of an interest in relation to any area to which this act applies except in accordance with the provisions of this act. it then proceeds to make a special exception in favour or the mahomedan law. on the wording of these two sections it is quite clear that the customary right of pre-emption has been abolished only in areas to which this act applies. section 3 contains no other prohibition. it is not wide enough to abolish pre-emption even in areas to which the act does not apply. section 1, sub-clause (3), clearly makes the act inapplicable to a.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for pre-emption of property situated within the municipal limits of the town of Jalesar. There were many points in dispute and the Court of first instance framed no less than four issues. One of the points was whether in view of the passing of the Agra Pre-emption Act, the suit was not maintainable. The Court of first instance in a clear judgment held that the Agra Pre-emption Act was not applicable to the suit and the case was governed by the old law. It then proceeded to consider the other, issues and ultimately passed a decree in favour of the plaintiff. The lower appellate Court has reversed that decree on the sole finding that under the Agra Pre-emption Act, all other rights of pre-emption have been abrogated.

2. We are of opinion that the lower appellate Court has erred in this conclusion, Section 1, Sub-clause (3) of the Act clearly provides that it does not apply to any area included within the limits of a Municipality, Cantonment, Notified area, or Town area. Then Section 3 provides that no right of pre-emption shall be enforced in respect of a transfer made after the commencement of this Act of an interest in relation to any area to which this Act applies except in accordance with the provisions of this Act. It then proceeds to make a special exception in favour or the Mahomedan Law. On the wording of these two sections it is quite clear that the customary right of pre-emption has been abolished only in areas to which this Act applies. Section 3 contains no other prohibition. It is not wide enough to abolish pre-emption even in areas to which the Act does not apply. Section 1, Sub-clause (3), clearly makes the Act inapplicable to a municipality. In our opinion it follows that the Act has not abolished a customary right of pre-emption within a municipal area to which the Act is not applicable.

3. The present case must, therefore, be governed by any custom that may prevail in the town. We accordingly allow this appeal and setting aside the decree of the lower appellate Court, send the case back to that Court for disposal of the remaining points in dispute. The plaintiff-appellant will have his costs of this appeal from the defendants-respondents.


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